13-2852-cv 

De La Pena v. Metro. Life Ins. Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or 

after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and 

this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a 

party must cite either the Federal Appendix or an electronic database (with the notation “summary 

order”). A party citing a summary order must serve a copy of it on any party not represented by 

counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th

day of January, two thousand fourteen.

PRESENT:

JOSÉ A. CABRANES,

REENA RAGGI,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

ABDON DE LA PENA,

 Plaintiff-Appellant,

v. No. 13-2852-cv

METROPOLITAN LIFE INSURANCE COMPANY, SANG IM,

 Defendants-Appellees,

KATHY DEAS,

Defendant.

_____________________________________

FOR PLAINTIFF-APPELLANT: Alan E. Wolin, Wolin & Wolin, Jericho, NY.

FOR DEFENDANTS-APPELLEES: Stephen E. Tisman, Valerie D. Ringel, 

Margolis & Tisman LLP, New York, NY.
2

Appeal from a July 12, 2013 judgment of the United States District Court for the Eastern

District of New York (Arthur D. Spatt, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the District Court’s judgment is AFFIRMED. 

Plaintiff-Appellant Abdon De La Pena (“De La Pena”) appeals from the District Court’s 

judgment dismissing his complaint for failure to state a claim upon which relief can be granted. See 

Fed. R. Civ. P. 12(b)(6). We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal.

“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 

construing the complaint liberally, accepting all factual allegations in the complaint as true, and 

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 

147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that is 

plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court 

to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are assumed to 

be true, this tenet is “inapplicable to legal conclusions.” Id.

Here, an independent review of the record and relevant case law reveals that the District 

Court properly dismissed De La Pena’s claim against the defendants. A plaintiff seeking to recover 

under Title VII must file a discrimination charge with the EEOC within 300 days of the occurrence 

of the allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). Accordingly, the 

District Court properly dismissed as time-barred De La Pena’s Title VII claims based on allegations 

of conduct that occurred beyond this 300-day limitation. De La Pena argues on appeal that such 

claims are proper pursuant to the so-called “continuing violation” exception, under which “a 

plaintiff who files a timely EEOC charge about a particular discriminatory act committed in

furtherance of an ongoing policy of discrimination extends the limitations period for all claims of 

discriminatory acts committed under that policy even if those acts, standing alone, would have been 

barred by the statute of limitations.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 

1997). Yet De La Pena’s allegations of discriminatory treatment and hostile work environment

amount to “[d]iscrete incidents . . . unrelated to an identifiable policy or practice,” which “will not 

ordinarily amount to a continuing violation.” Id. (citation and internal quotations omitted). 
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The District Court dismissed De La Pena’s timely discrimination claims for failure to raise a 

facially plausible inference that defendants’ actions were motivated by racial animus. Plaintiff

contends on appeal that by requiring such an inference the District Court disregarded the Supreme 

Court’s holding in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), that “an employment 

discrimination plaintiff need not plead a prima facie case of discrimination.” Id. at 515; see also 

Twombly, 550 U.S. at 570 (reaffirming the continuing vitality of Swierkiewicz). Yet the District Court, 

with reliance on Swierkiewicz, expressly recognized that De La Pena need not plead facts sufficient to 

establish a prima facie case. That the Court then dismissed plaintiff’s claim for failure to allege facts 

showing a plausible inference of discrimination is wholly consistent with Swierkiewicz. The Court 

simply reached the conclusion that plaintiff’s bald assertions of discrimination—unsupported by any 

meaningful comments, actions, or examples of similarly-situated persons outside of plaintiff’s

protected class being treated differently—were implausible and insufficient to survive a motion to 

dismiss.

Finally, plaintiff contends in conclusory fashion that the District Court erred in dismissing 

his hostile work environment and constructive discharge claims. After review, we conclude that the 

District Court properly dismissed these claims for the reasons set forth in its comprehensive

opinion. 

We have considered all of De La Pena’s arguments and find them to be without merit. 

Accordingly, we AFFIRM the July 12, 2013 judgment of the District Court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk